# Dilip and others v. State of U.P

- **Citation:** (2011) 1 ILRA 68
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-01-27
- **Case number:** Criminal Appeal No. 4606 of 2008
- **Bench:** Amar Saran, Naheed Ara Moonis
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dilip-and-others-v-state-of-u-p-41903
- **Pages:** 4

## Headnote

Criminal Procedure Code Bail during
Pendency
of
Appeal-Conviction
for
offence
under
section
302
IPCSubmission
that
on
basis
of
same
evidence with similar role has been
acquitted-appellant in Jail for last 9
years-con not be ground for bail-case of
302/34
IPC-wrong
acquittal-by
Trial
court can be converted in conviction by
High Court- No Case for Bail-Hearing
itself expedited.

Held: Para 9

Considering the aforesaid submissions
and without expressing any opinion on
the merits of the case and looking to the
gravity of the matter, even though the
principal appellant Dilip has undergone 9
years in jail, we are not inclined to grant
1 All] Dilip and others V. State of U.P.
69
bail to the appellants. Prayer for bail of
the accused appellants is rejected.
Case law discussed:
JIC 545 (SC); AIR 1971; AIR 1976 SC,294; AIR
2001 SC, 330; AIR 1963 SC, 1413: Cri. L.J.,
465 (SC); AIR SCW, 4300 (SC); Cri. L.J., 126
(SC); Cri.L.J. 1748 (SC); (2004) 5 SCC, 334;
Cri. L.J, 4498 (SC).

## Text

68 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Reservation Clerk or Supervisor of a
railway reservation counter can be said to
be discharging their official duties while
they are abusing, confining and assaulting
a passenger who had gone to the counter to
purchase a ticket or demanded the
complaint book to lodge the protest.

12. On the basis of the above
discussion I am of the view that the
judgment and order passed by the learned
Sessions Judge is totally illegal and
perverse and liable to be quashed.

13. The revision is allowed. The
impugned judgment and order dated
3.12.2002 is quashed and set aside.

14. Let the complete Lower Court
Records be sent back to the learned
Sessions Judge, Ghaziabad for its onward
transmission to the court concerned.
Learned Magistrate is directed to proceed
with the case in accordance with law. The
matter is very old. Therefore, expeditious
disposal of the case is directed. Opposite
party no. 2, Ram Gopal Sharma, opposite
party no. 3 Shivdan Singh and opposite
party no. 4 R.K. Meena are directed to
appear before the court of learned
Magistrate on 7.2.2011.

15. Opposite party no. 5, Constable
Jai Kumar, posted at the G.R.P. Railway
Station, Ghaziabad at the relevant time is
also directed to appear before the learned
Magistrate on the above-mentioned date.

16. The learned Magistrate is
directed to issue non-bailable warrant of
arrest against opposite party nos. 2 to 5, if
they fail to appear before it on the date
fixed by this Court. If the opposite parties
move bail application before the learned
Magistrate, he will dispose of the same in
accordance with law.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.01.2011

BEFORE
THE HON'BLE AMAR SARAN, J
THE HON'BLE NAHEED ARA MOONIS, J

Criminal Appeal No. 4606 of 2008

Dilip and others

...Appellants
Versus
State of U.P.

 ...Opposite Party

Counsel for the Appellants:
Sri Ravi Sahu
Sri Ahmad Saeed
Sri Ali Hasan
Sri Ghan Shyam Joshi
Sri M.Islam
Sri Sanjay Srivastava

Counsel for the Respondent:
Sri P.K. Singh
A.G.A.

Criminal Procedure Code Bail during
Pendency
of
Appeal-Conviction
for
offence
under
section
302
IPCSubmission
that
on
basis
of
same
evidence with similar role has been
acquitted-appellant in Jail for last 9
years-con not be ground for bail-case of
302/34
IPC-wrong
acquittal-by
Trial
court can be converted in conviction by
High Court- No Case for Bail-Hearing
itself expedited.

Held: Para 9

Considering the aforesaid submissions
and without expressing any opinion on
the merits of the case and looking to the
gravity of the matter, even though the
principal appellant Dilip has undergone 9
years in jail, we are not inclined to grant
1 All] Dilip and others V. State of U.P.
69
bail to the appellants. Prayer for bail of
the accused appellants is rejected.
Case law discussed:
JIC 545 (SC); AIR 1971; AIR 1976 SC,294; AIR
2001 SC, 330; AIR 1963 SC, 1413: Cri. L.J.,
465 (SC); AIR SCW, 4300 (SC); Cri. L.J., 126
(SC); Cri.L.J. 1748 (SC); (2004) 5 SCC, 334;
Cri. L.J, 4498 (SC).

(Delivered by Hon'ble Amar Saran, J.)

1. We have heard learned counsel for
the appellants and the learned A.G.A. for
the State.

2. The prosecution case, which was
mentioned in the F.I.R. lodged by the
informant Ashok Kumar P.W. 1 on
13.7.2003 at 9.15 p.m. at P.S. Bajariya,
Kanpur Nagar, was that on the same day at
3 p.m., there was a quarrel between the
deceased Sushil Kumar, brother of the
informant after he intervened in a quarrel
between one of the appellants Dilip and two
other persons Rohit and Rajan. Consequent
to this dispute, on the same night at 8 p.m.,
Sushil, P.W. 5 Jitoo, Vijay Kumar Yadav
and P.W. 3 Ram Lakhan Yadav had
gathered out side House No. 104/62
Seesamau, for going to a Grih Pravesh
ceremony in that house, at that time, the
three appellants Dilip, Arjun Pal alias
Palauli, Akhtar Karim alias Achchhe Kariya
and one Ankur, (who had been acquitted)
came there armed with country made pistols
and abused the deceased saying that he was
acting as a big neta. They all fired causing
injuries to Sushil, who fell at the spot. Other
persons who were sitting on cots in the lane,
ran away on the firing. The accused persons
then left threatening any one in the
neighbourhood not to depose in the case.
When the deceased was being carried to
Hallet Hospital, he died on the way.

3. It was submitted by the learned
counsel for the appellants that in the F.I.R.,
the informant P.W. 1 Ashok Kumar does
not describe himself as an eye witness and
therefore, his testimony in the Court, where
he described himself as an eye witness
should be excluded. P.W. 3 Ram Lakhan
Yadav and P.W. 5 Jitoo are the only two
other witnesses, who have been produced.
P.W. 3 has failed to support the prosecution
case in Court and has been declared hostile.
P.W. 5 Jitoo supported the prosecution case
in his examination-in-chief., but in his cross
examination, he has turned hostile. The
appellant Dilip has been in jail for about 8
years as he was not granted bail during trial.

4. It was also argued that as the charge
in this case was framed under section 302
read with section 34 IPC, the conviction of
the appellants under section 302 simplicitor
was illegal. Reliance for this contention was
placed on Atmaram Zingaraji Vs. State of
Maharashtra, decided on 13.8.1997 and
Subran @ Subramanian & others Versus
State of Kerala, 1993 JIC 545 (SC) and
Sohan Lal and others v. The State of U.P.,
AIR 1971 Supreme Court 2064. He also
contended that on the same evidence one of
the participants Ankur had been acquitted
by the Trial Judge.

5. Learned A.G.A., on the other hand,
argued that in this incident, the report was
promptly lodged, in which all the three
appellants were named. The incident took
place in the heart of Kanpur town in a "gali"
where witnesses were present. It is not fatal
for the prosecution, if the informant fails to
describe himself as an eye witness in the
First Information Report, if he did not
consider it fit to describe himself as an eye
witness in the F.I.R. on account of some
circumstances, as in his cross examination
he has denied not being an eye witness,
70 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
therefore, his evidence ought not to be
excluded.

6. It was further submitted that even if
due to the terror of the accused persons,
looking to the criminal nature of the act, or
due to some inducement, one of the
witnesses Ram Lakhan Yadav has turned
hostile. Even if the other witness Jitoo had
been
won
over
during
his
cross
examination, there was little reason to doubt
the veracity of the version given by Jitoo in
his
examination-in-chief
which
was
consistent with the F.I.R. version. In the
decisions
in
Satpal
Vs.
Delhi
Administration, AIR 1976 SC, 294 and
Gura Singh Vs. State of Rajasthan, AIR
2001 SC, 330, it has clearly been spelt out
that merely because a witness becomes
hostile, his entire testimony is not washed
of. It is for the Court to consider, whether it
can rely on any part of his testimony and
that in this case, the testimony of the
witness P.W. 5 Jitoo in his examination in -
chief ought to have been relied on.

7. Simply because one accused Ankur
has been acquitted in the case, rightly or
wrongly, it can provide no ground for not
relying on the testimony of P.W. 5 Jitoo.

8. The cases relied on by the counsel
for the appellants mostly referred to the
situation, where there were a number of
accused persons, who had been charged
under Section 302 read with Section 34 or
149 IPC. In Atmaram Zingaraji's case
(supra), Krishna Vs. State of Maharashtra,
AIR 1963 SC, 1413 was relied on. In this
case, four persons had been charged under
section 302 IPC read with the aid of section
34 IPC. Three persons had been acquitted.
In such circumstances, the Court observed
that the fourth accused could not be
convicted under section 302 IPC with the
aid of section 34 IPC. Likewise in Subran
@ Subramanian's case (supra), where four
of the accused persons had been acquitted,
the remaining two persons could not be
convicted under Section 302 IPC read with
Section 149 IPC, as a minimum number of
5 accused persons are required for
convicting an accused with the aid of
Section Section 149 IPC. Contrary to this,
there are many decisions of the Apex Court
viz. Radha Mohan Singh @ Lal Sahab Vs.
State of U.P., 2006, Allahabad Criminal
Law Reports-0-214 (SC), Lallan Rai Vs.
State of Bihar, 2003, Cri.L.J., 465 (SC),
Ram Ji Singh Vs. State of Bihar, AIR SCW,
4300 (SC), Gurupreet Singh Vs. State of
Punjab, 2006 Cri.L.J., 126 (SC), Mangu
Khan and others vs. State of Rajasthan,
2005 Cri.LJ. 1748 (SC), Dalbir Singh Vs.
State of U.P., (2004) 5 SCC, 334, Niranjan
Sheel Vs. State of Tripura, 1999 Cri.LJ,
4498 (SC), where it has been held that even
if an accused is charged under section 302
IPC, he can always be convicted even under
Section 302 IPC with the aid of Section 34
IPC, if the allegations disclosed that the
accused shared a common intention to
commit the crime. The contrary position
would obviously apply, where a charge has
been framed under Section 302 read with
Section 34 IPC. The Court was not barred
from reaching the conclusion that the
accused persons had an intention to commit
the murder and convicting them under
section 302 IPC, if the three persons have
been convicted by the Trial Court only
under section 302 IPC, but the High Court
during final hearing was of the view that
accused persons could be convicted under
section 302 read with section 34 IPC. In
view of the decision of the Apex Court in
Nalla Bothu Venkaiah Vs. State of Andhra
Pradesh,
2002
Cri.LJ,
4081
(SC),
paragraph 23, it is clear that even if an
accused can be convicted simplicitor under
1 All] Vijay Shankar Shukla V. State of U.P. and others
71
section 302 IPC, if the fatal injury can be
attributed to the accused. Wrongful acquittal
by the Trial Court, even if it stood, it would
not impede the conviction of the appellants
under section 302 read with section 149 IPC
where there is a charge under section 302
with the aid of Section 149 IPC. The
conviction could also be recorded under
Section 302 read with Section 34 IPC in
place of Section 302 read with 149 IPC, if a
finding was reached that the criminal act
was committed by several persons less than
5 in numbers in furtherance of their
common intention.

9.

Considering
the
aforesaid
submissions and without expressing any
opinion on the merits of the case and
looking to the gravity of the matter, even
though the principal appellant Dilip has
undergone 9 years in jail, we are not
inclined to grant bail to the appellants.
Prayer for bail of the accused appellants is
rejected.

10. However, hearing of the appeal is
expedited.

Office is directed to prepare the paper
books preferably within three months and to

list the appeal for hearing thereafter.

We also leave it open for the State or
complainant to file an appeal to challenge
the non conviction of the appellants under
Section 302 read with Section 34 IPC and
their conviction only under Section 302
IPC.

Let a copy of this order be given to the
Sri M.P. Yadav, learned A.G.A. within a
week for necessary action.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: 09.12.2010

BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.

Writ Petition No. 6938 of 2008

Vijay Shankar Shukla

 ...Petitioner
Versus
State of U.P. and others ...Respondent

Constitution
of
India-Art
226Repatriation Petitioners working for last
25
years
with
State
Urban
and
Development
Agency-an
autonomous
body-on equity and humanitarian grand
seeking protection-either their parent
department sick or closed-initially they
were send for 2.5 years-with further
extension
of
another
2.5
years-but
manage to work long spell of times of 25
years-decision takes by SUDA based
upon direction of state govt who is the
only authority to consider in accordance
with G.O. for appointing the surplus
employee-petition dismissed.

Held: Para 45

However, grievance of those petitioners,
whose parent departments are either
sick or are not in existence, is genuine.
This
Court
feels
that
it
is
State
Government, which directed SUDA to
engage the petitioners on deputation,
fixed the maximum period of deputation
as five years and directed not to absorb
any
deputationist
permanently.
The
decision taken by SUDA is mostly on the
direction
of
the
State
Government.
Hence it is a fit case where the State
Government
should
direct
its
departments
to
take
the
affected
petitioners either on deputation or on
contract. In this regard, the State
Government will be well advised to refer
to Govt. Orders No. 20/1/91-Ka-2/2008
dated 22.9.2008, 20/1/91/Ka-2/2008
dated 20.10.2008 and 20/1/91/Ka-22008 dated 9.6.2009. All these Govt.